Mathison v. Anderson

On Petition to Recall Remittitur.

Mitchell, J.

In this case an opinion was filed [103 Wash. 449, 174 Pac. 642] reversing the judgment of the lower court. Subsequently, upon application and showing made by the respondent, within a few days after the remittitur was sent down to the lower court, an order was made on February 24,1919, recalling the remittitur that we might further consider the question of the court’s jurisdiction to entertain the appeal. The point made by respondent is that the notice of appeal was not given within ninety days after the entry of the final judgment. At the hearing of the appeal on June 18, 1918, this court was not provided with any brief by respondent whereby onr attention conld have been orderly called to any lack of jurisdiction. It happened, however, that a few days prior to June 18, 1918, respondent had served and filed a motion to strike the statement of facts and dismiss the appeal and noticed it for hearing on June 18th, which was not a regular motion day. The motion was not presented to the court on that day. In the application for the recall of the remittitur, respondent called attention to the fact that, in the motion to strike the statement of facts above referred to, there was also included, as a ground for dismissal, a reference to the fact that the notice of appeal was not given within ninety days from the date of the entry of the judgment, and in this application made plain the facts and records upon which that contention was based.

After the order was made recalling the remittitur, respondent served and filed another motion to dismiss the appeal, duplicating, in effect, the contents of his petition to recall the remittitur on the ground that the notice of appeal was not served within ninety days, thus reminding us of what we were already aware, that the remittitur was recalled, “that the jurisdiction of this court to pass upon the case be further considered by the court.”

"We have considered the point involved as it appeared at the date of the order and as the same still appears. The affidavits in behalf of both parties used on the hearing of the petition to recall the remittitur cleared away the confusion thertofore existing concerning the fact that the county clerk, whose affidavits have been used on the hearing of all the motions, understood that the act of the actual recording of the final judgment and not the date of its being filed constituted its entry under the terms of the appeal statutes. It clearly appears now that the final judgment was signed by tbe trial judge and filed and marked filed and entered on tbe appearance docket by tbe clerk on July 31,1917, and that, on the ninety-first day thereafter, to wit, October 30, 1917, tbe notice of appeal was given. Under Rem. Code, § 1718, and upon tbe authority of many cases in this court, such as Crawford v. Seattle, Renton & Southern R. Co., 92 Wash. 670, 159 Pac. 782, tbe notice of appeal was not given in time to confer jurisdiction upon this court.

There is no alternative but to set aside tbe former opinion of this court in tbe case and to dismiss tbe appeal; and it is so ordered.

Mount, Tolman, Fullerton, Main, and Mackintosh, JJ., concur.